Google cache not a breach of copyright

Use of material fair, says court

A US district court has ruled that Google’s cache feature, which allows users to access snapshots of web pages taken when they were viewed by Google robots, does not breach copyright in those web pages. The ruling could help its Google Print dispute.

Use of the material is a fair use, said the Court.

About Google's cache

Google refers to its cache to assess whether a page matches a search term. If it had to scan and assess every live web page in real time it would be a painfully slow search engine.

Access to the feature can be found at the foot of individual search results, where the word ‘cached’ appears as a link if the service is available. Google does not run the feature for sites that have not been indexed, or where site operators have requested that their content be left uncached. Such requests can be made with meta tags, the hidden HTML of a web page that provides information for a search engine.

Google promotes its cache as a back-up service that users can access if the original page is unavailable but it highlights each cached page as one that may not be the most up-to-date. The headline link in search results goes to the current page.

However, there has been concern as to whether this wholesale copying, storage and provision of web pages is a breach of the copyright held in those pages by authors and website operators.

According to Judge Robert C Jones of the Nevada District Court, the answer is no.

The ruling

The case was brought by author and lawyer Blake Field who had taken exception to Google’s caching of stories posted by Field on his website. He brought an action for copyright infringement, arguing that the Google cache feature allowed web users to access copies of his copyrighted material.

Judge Jones was not impressed.

“When a user requests a web page contained in the Google cache by clicking on a 'Cached' link, it is the user, not Google, who creates and downloads a copy of the cached web page. Google is passive in this process,” he wrote.

“Without the user’s request, the copy would not be created and sent to the user, and the alleged infringement at issue in this case would not occur. The automated, non-volitional conduct by Google in response to a user’s request does not constitute direct infringement under the Copyright Act,” he added.

In addition, the fact that Field, who had admitted he knew how to disable the caching feature, had not done so created "an implied licence in favour of Google", said Judge Jones. He also found that Google was entitled to the defence of "estoppel", which stops a plaintiff from enforcing his rights if to do so would be unfair on the defendant.